R v Priestley - [2012] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v PRIESTLEY
Criminal Trial by Judge Alone
[2012] SASC 119
Judgment of The Honourable Justice Nyland
12 July 2012
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
Criminal trial by judge alone - accused pleaded guilty to aggravated assault causing harm and further charge of aggravated causing serious harm as a result of stabbing victim - victim former domestic partner of accused - pleas of not guilty to charges of rape and attempted murder - circumstantial evidence - victim suffered anal injury - whether prosecution excluded accident as cause of anal injury - whether penetration proved - whether accused intended to kill victim when he stabbed her.
Held: Accused guilty of rape but not guilty of attempted murder.
Criminal Law Consolidation Act 1935 (SA) 20(4), 48(1), 270A(1), 11, 23(1); Juries Act 7(1), referred to.

R v PRIESTLEY
[2012] SASC 119

NYLAND J: Michael John Priestley (the accused) has been charged with four offences, all of which are alleged to have occurred at Renmark in the early hours of 8 June 2011. Those offences are as follows:
Count 1:The offence of Aggravated Assault Causing Harm, pursuant to the provisions of s 20(4) Criminal Law Consolidation Act 1935 (“the Act”). The particulars of the offence are that the accused assaulted J, thereby causing her harm. The offence is aggravated as it is further alleged that that the accused committed the offence knowing that J was, at the time of the offence, his domestic partner or former domestic partner.
Count 2:The offence of Rape, pursuant to s 48(1) of the Act. The particulars of the offence are that the accused engaged in sexual intercourse with J, by inserting a part of his body or an object into J’s anus, without her consent, knowing that she was not consenting, or being recklessly indifferent to the fact that J was not consenting,
Count 3:The offence of Attempted Murder, pursuant to ss 270A(1) and 11 of the Act. The particulars of the offence are that the accused attempted to murder J.
Count 4:The offence of Aggravated Causing Serious Harm with Intent to Cause Serious Harm, pursuant to s 23(1) of the Act. The particulars of the offence are that the accused caused serious harm to J, intending to cause her serious harm. The offence is one of aggravation as it is further alleged that the accused committed the offence knowing that J was, at the time of the offence, his domestic partner or former domestic partner and that the accused used an offensive weapon, namely a knife, when committing the offence.
Upon his arraignment the accused pleaded guilty to Counts 1 and 4 on the Information but not guilty to Counts 2 and 3, that is the charges of rape and attempted murder. Count 4 is an alternative to Count 3 but was not accepted by the prosecution in satisfaction of the Information. The trial thereafter proceeded with respect to Counts 2 and 3 and the accused elected to have those matters tried by a Judge sitting alone, pursuant to an election filed in accordance with s 7(1) Juries Act 1927.
Onus of Proof
In considering the evidence, I have at all times borne in mind that the accused does not have to prove his innocence. The onus is upon the prosecution to prove the guilt of the accused beyond reasonable doubt. I also bear in mind that the charges against the accused are separate charges and that with respect to each charge it is necessary to consider whether the evidence that has been put before me proves beyond reasonable doubt that the accused is guilty of that particular charge. Because that is the case, it is quite proper for me to come to different conclusions with respect to each of these charges.
Witnesses
At the trial the following witnesses gave evidence for the prosecution:
J – the alleged victim;
JTM – the eldest child of J. He was present in the house at the time of the alleged offending.
Mr Joe Catalano – an acquaintance of J who was present at a poker function J attended the evening preceding the alleged offences. Mr Catalano drove J home at the conclusion of the poker function.
Dr Gregory James Dayman - a Medical Practitioner employed by the Yarrow Place Rape & Sexual Assault Service. Dr Dayman examined J at hospital on 8 June 2011.
Dr Peter Bautz - a Specialist Trauma Surgeon at the Royal Adelaide Hospital who treated J on her admission to hospital.
Pamela Fietz - a Forensic Scientist employed at the Forensic Science Centre. She gave expert evidence as to the examination of various articles submitted for DNA analysis.
In addition, evidence was provided by a number of police officers, namely:
Brevet Sergeant John Leslie Hamilton - a Crime Scene Investigator;
Sergeant Simon David Haebich and Senior Constable Kendall Ross Plant - both of whom attended at the home of the accused and J at Pyap Street, Renmark as a result of a telephone call from the accused. Sergeant Haebich subsequently arrested the accused at the premises;
Constable Peter James Colligan - he attended at the premises on the night in question and subsequently conveyed the accused to the Berri Police Station after his arrest;
Detective Brevet Sergeant Jason Paul O’Malley - he was the Investigating Officer in the matter.
Statements of witness
In addition to the oral evidence, by consent, a number of statements of witness were admitted into evidence as part of the prosecution case, namely:
P16 -       Statement of Lisa Roberts dated 15 June 2011.
P17   -       Statement of Carol Eisner dated 15 June 2011.
P18   -       Statement of Kerim Djurdjinovic dated 26 June 2011.
P19 -       Statement of Esin Melanie Sahin-Manifold dated 10 June 2011.
P20   -       Statement of Jordyn Lacey dated 15 June 2011.
A number of facts were also agreed between the prosecution and defence and those agreed facts are set out in Exhibit P23.
Accused elects not to give evidence
At the conclusion of the prosecution case the accused elected not to give nor call any evidence in his defence. The accused was entitled to take that course and see if the prosecution had proved the case against him. I draw no adverse inference against him for exercising that right which is a right given to him by law.
Background
The events which gave rise to the charges against the accused occurred in a very small space of time in the early hours of the morning of 8 June 2011. However, this incident occurred against a background of a lengthy relationship about which there appears to be little dispute. The relationship between J and the accused commenced in about the year 2001. At that time J had a child, JTM, who was born in 1999. J subsequently gave birth to three other children, namely a girl B, born on 17 October 2005, a girl M, born on 19 February 2008 and a third girl D, born on 5 July 2010. The accused is the biological father of B and M, but not of D. D’s father is a man called Skoda. It appeared, however, that all four children resided with the accused and J as a family unit and the accused treated and cared for all of the children as his own. I note that when the child, JTM, was interviewed by the police and when he gave evidence he referred to the accused as “dad”.
However, it appeared that the relationship between the accused and J was far from happy. J described a tumultuous relationship which had involved numerous periods of separation which eventually required some intervention by the Family Court. Notwithstanding those problems, it appears that both J and the accused wanted to provide the four children with a stable family environment. As a result, shortly before the birth of D in July 2010, the family moved to Pyap Street, Renmark. However, J said that she did not have a sexual relationship with the accused while they were residing at Pyap Street and that she slept on a mattress in the lounge room whilst the accused slept in the main bedroom.
J perceived that the accused wanted more from the relationship than she cared to provide, which included making sexual advances to her from time to time. J was adamant in evidence that from her point of view the domestic situation was solely for the benefit of the children and she was not interested in the accused in a romantic or sexual way. She said that leading up to June 2011 they had led separate social lives which included an arrangement whereby she went out every Tuesday and Thursday night to play poker at local hotels and the accused would remain at home to look after the children. She said on Friday nights and on the weekends the accused had time to socialise by himself.
On 4 June 2011 the accused injured his ankle during a local football match and was taken to the Berri Hospital for treatment. He left the hospital on crutches. Either later that day or the following morning, J travelled to Adelaide with the two younger children, M and D. She could not remember exactly what the trip was for but recalled that she had an appointment in Adelaide on Monday, 6 June 2011. JTM and B stayed in Renmark with the accused. Prior to leaving Renmark J told the accused that she was going to stay with Mr Skoda, as a result of which the accused offered to pay for her and the children to stay in a caravan so she would not go to Mr Skoda’s house. J said that she stayed at the caravan park for only one night and Mr Skoda also stayed there. Thereafter, she moved to Mr Skoda’s house.
J drove back to Renmark on Tuesday, 7 June 2011. She arrived home at about 4.00 pm. J said that prior to her arrival she had a number of arguments with the accused on the phone, which included an argument about her plan to go out to poker that night and his frustration about her not wanting to spend time with him.
The poker evening
J said that she was part of a group of people who regularly socialised on Tuesday nights at the Paringa Hotel to play in a poker tournament. However, on this particular night the game at the Paringa Hotel had been cancelled and alternative arrangements had been made for the function to be held at the home of Lisa Roberts. J said she was collected from Pyap Street by Jordan Lacey at about 7.00 pm and, apart from stopping to buy a small bottle of Scotch en route, they went straight to Lisa Roberts’ house. J said a number of other people were there which included Mr Joe Catalano. Mr Catalano was the only member of the poker group to give evidence at the trial. J’s evidence was that within minutes of arriving at Lisa Roberts’ house the accused began calling her on the telephone and that thereafter he did so repetitively during the night. That is supported by Exhibit P22, which shows a call being made from the accused to J at about 6.55 pm and thereafter on a constant basis throughout the night with the last call being made at about 1:49 am.
The main subject of the calls appeared to be the child D. D was apparently teething and the accused was saying that she was unwell and he wanted J to return home to tend to her. J said that the accused initially sounded agitated and stressed, but as the calls continued, the accused appeared to become increasingly angry.   J admitted that she “agitated him”[1] by not doing what she was told. She said she had her phone on loudspeaker so that the others at the poker game could hear what was being said and she conceded that others at the gathering were “giving him shit”.[2]
[1]    Transcript p 56.
[2]    Transcript p 56.
Mr Catalano’s evidence as to the time J arrived at the poker game, when the calls started and the time at which he and J later left the premises differed from the evidence of J, but it is unnecessary to resolve that discrepancy as ultimately I do not think anything particularly turns on that. Mr Catalano confirmed that the phone calls could be heard on the loudspeaker and he thought both parties were angry with each other. He said the accused was trying to say something about the children, but J was switching the phone off and making fun of the accused, as were others in the group.
J said she left Lisa Roberts’ house at about 2.00 am and intended to walk home but Mr Catalano offered her a lift. She said it took about two to three minutes to get home and they did not stop anywhere. However, Mr Catalano said he offered J a lift as she was highly agitated when she left Lisa Roberts’ house and was saying things like, “I’m going to kill him, I’m going to kill Michael. He’s giving me the shits”.[3] Mr Catalano said he was going to drive J straight home but he could see she was upset and jumpy so he parked at McDonalds for about half to three-quarters of an hour, although he acknowledged he may have told the police that it was only for about 15 minutes. Mr Catalano said he told J to settle down and after that happened they arrived at Pyap Street between about 2:00 and 2.30 am. J was dropped off in front of her house, but on the opposite side of the road. Mr Catalano said that he saw the accused sitting on the doorstep. He did not see anything in his hands. Mr Catalano said J walked straight past the accused into the house. He said that during the time he was with J, there was no physical or sexual contact between them.
[3] Transcript p 110.
Accused’s phone call to the police
Before J arrived home the accused phoned 000 to alert them to the possibility of a domestic dispute. Exhibit P21 is a CD of a telephone call which was made at 1.42.26 am. In that call the accused told the operator that his wife had threatened his life, and he was worried that a fight would occur between him and J’s friends when she arrived home. The accused said it was not an emergency, but that he just wanted to let the police know what was happening. The operator informed the accused that this information would be sent through to the Sergeant in charge of the Renmark area.
J’s arrival at the house
J said that she entered the front door and the accused followed her and then closed the door. She said she went to the kitchen sink to get a glass of water but when she turned around the accused was coming towards her with his hands positioned in the air. She said he put his hands around her throat and squeezed her neck tightly, pushing on her neck bone. This is the incident which is the subject of Count 1 and to which the accused has pleaded guilty. She said she could not breathe or talk. At some point she heard her son, JTM say, “Dad, you can’t do that”[4] and the accused then told him to go to his room. J said that after that all she remembered was falling to the ground and scratching the accused on his eye as she fell. She recalled trying to grab hold of the oven, and she thought she might have hit her head on it as she fell to the ground. She said the accused still had his hands around her throat and was squeezing. J said the next memory she had was that of waking up in the care of ambulance officers. Her pants were down to her thighs and she had a severe pain in her anus. She was taken to the Berri Hospital and then transferred to the Royal Adelaide Hospital where she was treated for a single stab wound to her left chest.
[4] Transcript p 62.
Evidence of JTM
At the time of this incident JTM was not quite 12 years old. He was present in the house when J returned home. He was interviewed by a Police Officer later in the morning of 8 June 2011 about these events and that interview was tape recorded. With the consent of the defence the recorded interview (Exhibit P9) was played at the trial and treated as the evidence-in-chief of JTM, although JTM gave some supplementary evidence by CCTV.
JTM said that when his mother arrived home he heard the accused yelling and he looked out of his window and saw that the accused had a baseball bat in his hands. Photographs 25 and 26 of Exhibit P1 show a baseball bat on the ground outside the house. That bat apparently was usually kept by the front door. However, J did not mention the bat in her evidence and Mr Catalano did not see the accused with the bat or anything else in his hands when he dropped J off at the house. In the circumstances, I am unable to reach any conclusion about the baseball bat, so I disregard this aspect of JTM’s evidence. However, the evidence of JTM substantially supported the evidence of J as to what happened in the kitchen.
JTM said he left his room to go to the toilet. He heard J and the accused arguing and he heard the accused say he wanted to stab J. He heard the accused’s crutches and then heard crashing and banging in the kitchen and the accused used what JTM referred to as “naughty words” towards J. JTM said that when he came out of his room the two of them were fighting in the kitchen. They fell to the ground and were holding each other around the wrists and shoulders. J was scratching at the cupboard trying to kick the accused away. JTM was screaming to the accused to get off, but the accused would not listen. JTM said he tried to dial the police on his iPad but he did not know how to do that. The accused told JTM to return to his room. JTM said he went back but he then returned and he saw the accused dragging J down the hallway. J’s face kept hitting the floor because she was lying face down and the accused was dragging her by her hand. JTM thought J was “knocked out cold” although the accused told him that she was just asleep. JTM said when in the kitchen, the accused was wearing a short-sleeved black, silky top and track pants. He had a shoe on his uninjured foot and the other was bandaged. He could not remember what his mother was wearing.
JTM said that after the accused and J went into the bedroom, he heard a snoring sound come from his mother. At about that time his sister B woke up. He went into the room and saw the accused lying or sitting on top of J, and J was unconscious. J was lying next to the bed on the ground close to the back door. The door to which JTM referred is that shown in Photographs 36 and 37 of Exhibit P1 and is on the far side of the room at the rear of the house. JTM said the accused was naked from head to toe at that stage and his mother was half naked. JTM said the accused’s phone rang and JTM answered it but it was silent “like no-one was on the phone”.[5] He said the accused asked JTM to give him the phone, but JTM said he would only do that if he got off his mother. He and B then started throwing pillows at the accused to distract him. He did not see any blood on his mother at that time.
[5] Transcript p 92.
JTM said he went to the main bedroom on a number of occasions that night, but the exact number of times and sequence is confusing. This is hardly surprising, given the nature of the events that he was endeavouring to recall. When the police arrived, at their request, he went back to the bedroom to advise the accused and J of their arrival, but he said on that occasion he only opened the door a little bit so he could not see anything. In his interview JTM said after the police entered the bedroom he saw the accused and J on the bed and his “mum was laying unconscious or she was a tiny bit conscious, umm, and she was bleeding lots”. He said the police then tackled the accused to the ground.
When JTM was cross-examined about the incident in the kitchen, he said he heard the accused and J arguing, crashing and banging, and also heard crutches move against the floor and glass break. He was adamant that the accused had dragged and not carried J down the corridor from the kitchen. He was asked whether he had been to the bedroom five times that night. He said he thought it was about four, but it might have been five. It was put to him that he had told Sergeant O’Malley, the Investigating Officer, in a statement made earlier this year that he had been to the bedroom five times in total, and JTM responded, “There was roundabout five times, I don’t know if it was five or four”.[6]
[6] Transcript p 98.

It was further put to JTM that he had also told police that on the first occasion that he went to the bedroom he saw the accused telling J to lie down and J was on her back and leaning up on her elbows. JTM denied ever seeing J on her elbows and said he could not remember telling the police that. When he was shown his statement dated 14 March 2012, JTM said he might have told the police that he saw his mother on her elbows, but could not now remember. He was adamant that “at no time I never saw my mum on her elbows”.[7] He later said he did not recall making such a statement to the police but he might not be able to remember it at the moment.
Q:So, is the answer you might have said it, you now can’t remember.
A:I might. It’s 50/50, I might not of, or might have and I can’t remember. I can’t remember if I did. I can’t remember if I haven’t.[8]
[7]    Transcript p 100.
[8]    Transcript p 104.
Evidence of Police Officers
Sergeant Haebich was the patrol supervisor on duty on the night in question. He was accompanied by Senior Constable Plant. In the early hours of 8 June 2011 they received a tasking to attend the Pyap Street address. The information received was that the accused had telephoned to say he feared there would be a domestic disturbance when his partner came home. Sergeant Haebich said he tried to call the accused but the phone rang out. This appears to be the call shown on the phone records (Exhibit P21) recorded at 2.21 am and fits in with the evidence of JTM that he answered a call on the accused’s mobile phone but no-one responded. This was the occasion on which JTM described the accused lying naked on top of J on the bedroom floor.
Sergeant Haebich said that he and Senior Constable Plant arrived at the house a little after 2.30 am. They knocked on the door and it was answered by JTM. They asked him if everything was all right and he said, “Yes”. They asked him to get his father. JTM walked back into the house but the front door was left slightly ajar. JTM returned 20 or 30 seconds later. Sergeant Haebich said he seemed quite calm but the child B came out and she appeared to be upset. As a result of something she said, the two police officers decided that it was appropriate to go into the house. They went down to the main bedroom. The door was closed but Sergeant Haebich said he heard a muffled female’s voice, quite distressed, saying, “don’t, don’t”.[9] Sergeant Haebich opened the door and saw the accused on the bed. He said the accused was wearing a black, puffy jacket and blue track suit pants. Sergeant Haebich said he could not see who was underneath the accused, but as he entered the door, he yelled out to the accused to get off. When the accused did not move, Sergeant Haebich grabbed the accused’s hair and left elbow and dragged him away. Sergeant Haebich said he could not see the accused’s right arm, but Senior Constable Plant then yelled out “Knife – put the knife down”.[10] Sergeant Haebich said that as soon as he heard that he turned to the accused and pushed him down on to the floor. Senior Constable Plant came to assist and together they restrained the accused. In the course of that struggle the accused dropped the knife. Sergeant Haebich said that as they were restraining the accused, he looked back and saw J on the bed. She was moaning and groaning and a small amount of blood was visible on the top left part of her chest.
[9] Transcript p 121.
[10] Transcript p 133.
After the accused had been handcuffed, Sergeant Haebich took a closer look at J and saw blood everywhere. He said J was wearing a grey top, a red bra and on the bottom part of her body were blue jeans, the top of which were level with her pubic area. He said J was laying with her head at the head end of the bed, but her legs were over the far side of the bed. As soon as the accused had been restrained, Sergeant Haebich applied pressure to J’s wound and Senior Constable Plant placed a pillow over the injury and used another pillow to prop up her feet. Sergeant Haebich said that while he was tending to J, the accused was saying, “She’s got to live – the kids have got to have at least one parent”.[11]
[11] Transcript p 127.
Senior Constable Plant said that he was behind Sergeant Haebich when they went into the bedroom, but he saw “two people on the bed – the female laying on her back and a male sort of half straddling over the top of her”.[12] He said that as Sergeant Haebich identified himself as a police officer and dragged the accused away, he saw the accused holding a knife in his right hand and he called out to Sergeant Haebich. He confirmed that after the accused was restrained, he endeavoured to render first aid to J, in the course of which he used a pillow to apply pressure to the wound to her chest. He said her jeans were pulled down and you could see her underwear.
[12] Transcript p 132.
Constable Colligan subsequently arrived and was given the task of operating the video camera and recording any conversations with the accused. During the time he was with the accused, Constable Colligan said that he observed that the accused’s tracksuit pants were on backwards. Sergeant Haebich gave the accused his arrest rights at the front of the house and Constable Colligan then conveyed the accused back to the Berri Police Station. He said at one point the accused said, “I never would have attacked her if she didn’t attack me first, I just lost it, I – all the shit she put me through, I just lost it”.[13]
[13] Transcript p 143.
Medical and scientific evidence
It is an agreed fact that two paramedics arrived at Pyap Street at approximately 2.48 am and the ambulance officer noted that J was lying on the bed and her jeans and underpants were partially down, exposing some of her genital region. During the course of examination, paramedics removed J’s jeans, bra and singlet and threw them into the en suite area of the house. The paramedic noticed that whilst removing her jeans that J’s underpants were pulled down to her upper thigh. J was transported by ambulance to the Berri Regional Hospital, where she arrived at approximately 3.30 am and was assessed by Dr Singh. He observed a wound about 4 cm long and 3cm wide on her left chest. A trauma retrieval team from the Royal Adelaide Hospital then arrived and J was transferred to the Royal Adelaide Hospital.
Dr Bautz
Dr Bautz subsequently treated J at the Royal Adelaide Hospital. He said that J had had a single stab wound in the upper third of her anterior chest, which he indicated was just below the left shoulder, within centimetres of the collarbone. He described the wound as a stab wound which had penetrated through to the lung tissue and had caused J’s lung to collapse. Due to the volume of blood loss, J required a blood transfusion. Dr Bautz said that J developed an infected fluid collection in the lung which did not respond to antibiotics and surgery was required. Dr Bautz thought relatively little force would have been required for the knife, Exhibit P6, to have penetrated J’s chest. He thought that the wound may not have bled a large amount initially, but movement would have caused a greater volume to come out. Dr Bautz confirmed that strangulation and a loss of consciousness would be consistent with J suffering a memory loss.
Dr Dayman
Dr Dayman is employed at the Yarrow Place Rape and Sexual Assault Service. A main feature of his work is conducting rape, sexual assault and medical examinations. He receives most referrals from SAPOL, but referrals can also be made from Emergency and Hospital Departments, or from a victim or their family.
At about 2.35 pm on 8 June 2011, at the request of the police, Dr Dayman attended the Royal Adelaide Hospital and examined J. He said J’s physical symptoms included difficulty breathing and swallowing, changes to her voice, a sore throat, and pain in her neck. J told him that she lost consciousness at the time of the assault.
Dr Dayman undertook a general examination of J and produced a body chart of her injuries which was admitted into evidence as Exhibit P15. The relevant injuries included petechial bruising above and below her right eye, petechial bruising on the lower and upper part of her left eye, and bleeding in her left eyeball. Dr Dayman also observed swelling and bruising to J’s neck. Dr Dayman said that if the bruising around the neck, the petechial bruising and the blood in the eye were all caused at the same time, then that was consistent with the injuries one might expect if pressure was applied to the neck, ie manual strangulation. Dr Dayman also observed an abrasion to J’s shoulder blade which he said was consistent with being dragged across carpet. That supports the evidence of JTM as the way in which J was dragged to the bedroom by the accused. There was plaster over the stab wound, further bruising on J’s legs and dried blood under some of her fingernails.
Of particular relevance to the rape charge is the evidence of Dr Dayman as to his examination of the genital area of J. His observations of the relevant injuries are contained on the last page of Exhibit P15. Dr Dayman said he could not locate any injuries on an external examination of J’s genital area but he observed purple bruising about 4cm in size to her anal area, between the anal opening and towards the area of the tail bone. The bruising extended on to the perianal skin which he said was “the area of skin where the skin of the buttocks sort of melds into the skin of the beginning of the anal area and that area is usually sort of puckered and a different colour”.[14] He said there was also a laceration in that area which he estimated at about 2cm in size. This was visible on the external perianal skin and he could see that it extended into the anal canal but could not see where it ended. Dr Dayman said a laceration is not a cut and is usually the result of blunt trauma, rather than sharp trauma. Dr Dayman expressed the opinion that the most likely cause of both injuries was something blunt which had penetrated the outside, and had caused the bruising and the split in the anal skin, which extended from the outside into the anal canal.
[14] Transcript p 166.
Dr Dayman thought it was possible that a penis could cause such an injury, but because a penis had a limited amount of rigidity and had a soft fleshy tip, J’s injuries were more likely caused by something harder, “like fingers or a hand or another hard object”.[15] It was not possible to determine from the nature of the injuries whether intercourse had been consensual. On the assumption that the injury to the anus and associated region had occurred from the outside in, he believed that there would have been penetration because the skin of the external anus had stretched to the extent that there was a tear on the outside which had extended to the inside of the anal canal. He considered the age of the anal injury to be less than 24 hours, but at a stretch 48 hours, as there was no active bleeding but slough in the wound. There was also no evidence of healing.
[15] Transcript p 168.
DNA Evidence
Ms Fietz gave evidence about the articles that were submitted for DNA analysis. Ms Fietz said that two different types of DNA analysis were used, namely Y-STR analysis, which only identifies male DNA in a sample and autosomal STR analysis. She prepared a chart which was admitted as Exhibit P24. This included the analysis of a penile swab that was taken from the accused. The penile swab sample produced a mixed DNA profile with respect to two individuals. The major contributor matched the accused, and the minor contributor was consistent with J. This is one of the items of circumstantial evidence relied upon by the prosecution to prove an act of sexual intercourse by the accused.
J’s underpants were also submitted to the Forensic Science Centre for analysis. Bloodlike stains were visible on the front and at the rear of the underpants. Exhibit 25 includes photographs of the blood stains on the underpants and notes as to their examination. A tapelift of the inner waistband produced a mixed DNA profile from at least three individuals. The major component matched J, but the accused could not be excluded as a minor contributor. The blood-like staining on the rear of the underpants was also submitted for Y-STR analysis. This produced a mixed DNA profile from at least three contributors. There was insufficient information to conclude whether the accused was one of the three contributors. Ms Fietz explained that DNA can be deposited from body fluids such as sweat and from contact between a person and an item. She also said that some people shed larger amounts of DNA than others and that different surfaces are better at holding on to DNA than others. An item that is held for a short period of time also tends to reveal less DNA than an item held for a long period of time. Ms Fietz also explained that DNA can survive the washing of an item. The evidence of three contributors on the underpants is curious, but taking into account the various ways in which the DNA could have been left there, I do not believe this aspect of the evidence assists in resolving issues for the decision in this case.
Although this aspect of the DNA evidence is curious, ultimately it does not assist in resolving issues for the decision in this case. A perianal swab taken from J as part of the Sexual Assault Investigation Kit was also examined. No whole sperm or sperm heads were observed when looked at microscopically and on the defence case this is significant in relation to the charge of rape. The perianal swab was also submitted for Y-STR analysis, but no DNA profile was obtained.
The other items that were examined did not produce results of any significance and no semen was found.
I now turn to the charges against the accused.
Count 2: Rape
In order to prove the charge of rape the prosecution must prove:
1The accused engaged in sexual intercourse with J. The definition of sexual intercourse in s 5 of the Act includes:
Any activity consisting of or involving the penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object.
2The intercourse occurred without J’s consent.
3The accused knew that J was not consenting or was recklessly indifferent as to the lack of consent. A person is recklessly indifferent that another person does not consent to intercourse if he:
(a)   is aware of the possibility that the other person might not be consenting to the act but decides to proceed regardless of that possibility, or
(b)   is aware of the possibility that the other person might not be consenting to the act but fails to take reasonable steps to ascertain whether that other person does in fact consent to the act before deciding to proceed, or
(c)   did not give any thought as to whether or not the person is consenting to the act before deciding to proceed.
The prosecution case is that in the bedroom at Pyap Street the accused had sexual intercourse with J by penetrating her anus with a part of his body, or an object, without her consent, and that the accused knew she was not consenting. However, J could not remember what occurred in the house after the assault in the kitchen. I consider her lack of memory to be genuine as it is consistent with the medical evidence, as well as the observations made by her son when the accused took J to the bedroom.
The prosecution case against the accused with respect to the charge of rape is therefore circumstantial. To prove the charge of rape the prosecution must therefore exclude any reasonable explanation consistent with innocence. Before I can be satisfied that the accused is guilty of the charge of rape I must be satisfied not only that his guilt is a rational inference, but is the only rational inference that the circumstances I find proved enables me to draw.
On the defence case, there is insufficient evidence to enable me to find the rape charge proved beyond reasonable doubt. Mr Stokes submitted that I could not exclude as a reasonable possibility that the anal injury suffered by J was accidentally incurred in a struggle between J and the accused as opposed to the accused engaging in an act of sexual intercourse with J. The prosecution had therefore failed to prove an essential element of the charge of rape and the accused should be found not guilty.
The first element
As to the first element, the prosecution relies upon a number of circumstances as proving that the accused engaged in an act of sexual intercourse with J while he was with her in the bedroom, namely:
(1)the evidence of Dr Dayman as to the nature and probable timing of J’s anal injuries;
(2)the presence of J’s DNA on the penile swab taken from the accused from which it can be inferred that there was contact between J and the penis of the accused;
(3)the evidence of JTM that in the bedroom the accused and J were naked and the accused was on top of J;
(4)the presence of blood on the carpet at the location at which JTM saw J and the accused naked;
(5)the state of clothing of J and the accused when the police arrived, which indicated that J had been hurriedly re-dressed and the accused had hurriedly re-dressed himself;
(6)J’s position on the bed as observed by the police – ie with her legs hanging off the far side of the bed. On the prosecution case it can be inferred that J had been lifted or dragged up on to the bed in a hurried way;
Ms Telfer submitted that these matters should be looked at in the context of the evidence relating to the sexual infidelity of J and the accused’s strong feelings for her. Taking into account all of the combined circumstances, I should be satisfied beyond reasonable doubt that the first element had been proved beyond reasonable doubt, that is that the accused had sexual intercourse with J by penetrating her anus with his penis or fingers or some other hard object.
Findings
I am satisfied that the anal injury suffered by J was not incurred prior to the incident in the bedroom. Dr Dayman thought it was recent, that is within 24 hours of his examination, but possibly stretching to 48 hours. Although the greater time span would include the period during which J was in Adelaide with Mr Skoda, I reject the possibility of the injury being incurred during that earlier time. From the description of the injury given by Dr Dayman it must have been painful. That is supported by the evidence of J that she was aware of a severe pain in her anus at the time she was being removed from the house by the paramedics at the conclusion of this incident. It can be inferred from the blood shown on the rear of J’s underpants that the injury bled. If the injury had been incurred prior to J’s arrival home from Adelaide, I find it highly unlikely that she would have continued to wear those pants when going out on a social occasion with friends. J was at the poker event for many hours that night but there was no evidence of her showing any signs of discomfort in the course of the evening.
I am satisfied that the bruising and the laceration were caused at the same time and that they were the result of the penetration of a blunt object from outside in, rather than the other way around, such as being caused by the passing of a hard stool, as there is nothing in the history of relevant events to support the latter possibility. Photographs 38, 59 and 60 of Exhibit P1 show an area of blood on the carpet adjacent to the bed. That appears to be discrete from the large area of blood on the bed which clearly was due to the loss of blood as a result of the stab wound. The blood on the floor is in the approximate position at which JTM saw the accused and J in a state of undress. That supports the inference that the injury was incurred at about that time and in that position. The police officers noted that J’s jeans were pulled down and her underwear could be seen. The paramedics also noted that J’s underpants had been pulled down to her upper thigh at the conclusion of this incident. When spoken to by the police about the allegation of rape the accused did not deny having sexual intercourse with J but said:[16]
Yes, we had an argument. We had been drinking, ra, ra, ra. We went to the bedroom and started to have sex, ra, ra, ra. Then she got violent and she attacked me and, well, I stabbed her.
[16] Transcript p 179.

As earlier indicated, the presence of J’s DNA on the penile swab taken from the accused is relied upon by the prosecution as showing there was contact between J and the penis of the accused at some stage that evening. However, Mr Stokes submitted that the penile swab evidence was insufficient to prove penile penetration as it was not possible to exclude some accidental transfer in the course of a struggle. As to this aspect of the matter, Mr Stokes also relied on the forensic evidence which indicated that there were no whole sperm heads located in any analysis of any sample taken from the underwear or anything else. However, to prove an act of sexual intercourse as required by this first element it is not necessary for the prosecution to prove ejaculation so the absence of sperm or semen is of limited assistance. I agree that the penile swab evidence of itself would be insufficient to establish penetration, but that is only one item of circumstantial evidence relied upon by the prosecution and it must be considered along with all the other evidence in the case. .
In the course of cross-examination Mr Stokes suggested to Dr Dayman the possibility of the injury to the anus of J being caused accidentally. The evidence as to this aspect of the matter is as follows: [17]
[17] Transcript p 173-174.
Q There are a number of blunt objects that might do that but in the context of two human mammals in contact, one obvious cause would be the penis of the male, causing those injuries.
AYes, I think a penis could cause these injuries, yes.
QA finger or, plural, fingers of anybody might cause those injuries.
AYes. Yes, that’s true, yes.
QSo, for example, application of pressure from a thumb might cause those injuries.
AYes, they could, but I think it was quite an intensive amount of bruising and quite a significant laceration, so although I would say that it would be possible to put a thumb in the bottom and cause these injuries, in my opinion, it would be something a bit bigger than that, likely to be, that is.
QSo are we sounding more like more than one digit from a hand.
AYes, I think so, something larger than that, yeah.
QWould the laceration be consistent with something like a fingernail.
ANo. I think a fingernail would be more likely to cause more of a cut-type injury rather than a ragged tear in the skin.
QWhat this injury does not tell us, if I’m right, is whether this was – it tells us that there was force from a blunt object applied to this area to cause the injury as the most likely scenario.
AYes.
QIt doesn’t tell us whether any penetrative injury was caused by the person deliberately applying that blunt force trauma to that area or, for example, pressing down on a person and slipping in the course of, say, a struggle and there being some penetration by fingers, plural, in that process.
AI’m not exactly sure what you’re asking me.
QIt doesn’t tell us whether the penetration was accidental or deliberate.
ANo, it doesn’t, no.
QObviously one way of approaching it is that it might be deliberate. That’s certainly one scenario, isn’t it.
AYes.
QIf two people were struggling, one was, for example, resisting and someone was trying to pin someone down and slipped or, being on top of the person, slipped in some way and there was accidental penetration, that could also cause that injury.
ALook, I think that scenario is possible. I’m not sure how likely I believe it to be, but I think it’s possible.
Dr Dayman eventually conceded that he could not exclude the possibility of accident, but he clearly thought it was unlikely. Given the nature of the force which Dr Dayman considered necessary to inflict that injury and the fact that there was an area of bruising as well as the laceration, I am satisfied that accidental penetration can be excluded as a reasonable explanation for the anal trauma. Taking into account the combined strength of all the proven circumstances, including the nature of the anal injury, the blood on the underpants, the blood on the floor, the evidence of JTM as to what he saw in the bedroom, the presence of J’s DNA on the penile swab, the observations made by police and paramedics as to J’s clothing and J’s complaint about the severe pain in her anus at the end of this incident, I am satisfied that the accused penetrated the anus of J when they were in the bedroom with his penis, fingers or some other hard object. I therefore find that this first element of the charge of rape proved.
Second and third elements
The second and third elements are both concerned with the question of consent. The second element requires me to be satisfied that J did not consent to the act of sexual intercourse with the accused and the third element requires me to be satisfied that the accused knew that J was not consenting or was recklessly indifferent as to the lack of consent. In circumstances of this case I believe that both of these elements can be dealt with together.
I have earlier referred to the evidence of statements made by the accused to the police when the allegation of rape was put to him. That contains a suggestion that any sexual activity between the accused and J that night was consensual. I assume that was also the point of the cross-examination of JTM about having told the police that he had seen his mother on her elbows on the bed.
Mr Stokes also cross-examined J about the possibility of some consensual sexual activity and evidence relating to that topic is as follows:[18]
[18] Transcript pp 76-77.
Q.     … Could it be that you do remember that Michael carried you in and you don’t want to admit that publicly.
A.     I know I was dragged because of the drag marks on my body.
Q.     Could it be that in fact reluctantly or otherwise you have allowed Michael to try and have sex with you that night.
A.     Excuse me?
Q.     At least fool around without having penetration.
A.     Can you repeat that question so I can hear it properly.
Q.     Could it be that as a mixture of alcohol, frustration and despair – I will put it in those terms –
A.     That I got strangled and wanted to have sex?
Q.     That you allowed Michael to try to have sex with you; whether he succeeded or not is another matter.
…
A.     I had sworn to myself that I would never physically touch him again and I don’t care what substances or what you think happened, I was never in a relationship at the time.
J was very clear in her evidence that she considered her sexual relationship with the accused was at an end. The fact that she was in a relationship with another man at the time in question, together with the evidence of the assault in the kitchen and the dragging of J to the bedroom, in my opinion are inconsistent with any form of consensual sexual activity between these two people when they were in the bedroom, or at any other time that night. I am satisfied and find that J did not consent to having sexual intercourse with the accused. For the same reasons I am satisfied that the accused well knew that J was not consenting but he persisted in his actions, despite being aware of her lack of consent. I am therefore satisfied beyond reasonable doubt that the accused committed the crime of rape and I return a verdict of guilty to Count 2.
Count 3 – Attempted murder
I now turn to Count 3 which is the charge of attempted murder. In order to prove the charge of attempted murder the prosecution must prove:
(1)    A deliberate intention on the part of the accused to kill J.
(2)    An attempt by the accused to carry out that intention.
(3)    That the doing of that act was unlawful.
By his plea to Count 4, the accused has admitted the deliberate act of stabbing J with intent to cause her serious harm. By that plea the accused also admits that the stabbing was unlawful, that is, carried out without any lawful excuse such as self defence. However, on the prosecution case the accused intended to do more than cause serious harm when he stabbed J. He acted with the intention of ending the life of J.
There is no dispute that the knife, Exhibit P6, was the knife used by the accused to stab J. In the course of her evidence, J said that while she was in Adelaide the accused called her and asked about its location.[19]. She said the knife in question was one the accused was permitted to carry in his employment as the manager of a fruit and vegetable business. J said she had hidden the knife and she asserted that when the accused was angry he would pull it out and sharpen it in front of her. J was non-responsive to questions put to her in cross-examination on this topic, but eventually appeared to concede that she had not previously mentioned this behaviour in any statement she had made to the police. In the circumstances I place no reliance upon this aspect of the evidence of J. In any event the prosecution, in submitting that the accused had acted with an intention to kill, did not suggest that the accused had any plan to use the knife prior to the night in question. However, Ms Telfer relied on a number of matters to prove that when the accused stabbed J he did so with the intention to kill J:
(1)the knife used was a sharp and serious knife;
(2)the position of the wound - ie in the chest, which must have carried with it an appreciation of risk;
(3)the depth of the wound, which penetrated the lung tissue;
(4)the fact that the wound must have been inflicted very close in time to the arrival of the police as it was still in the accused’s hand when the police entered the bedroom;
(5)the stabbing had occurred against the background of the earlier serious assault in the kitchen.
[19] Transcript p 50.
Ms Telfer submitted that the stabbing of J was the culmination of a series of events which had been sparked by feelings of humiliation and despair on the part of the accused which started with the assault in the kitchen. That was followed by the act of rape. Ms Telfer submitted that it could be inferred from all of the circumstances that as the police arrived the accused had suddenly realised the enormity of what he had done and had decided to finish what he had started by stabbing J with the intention of killing her.
In considering this question of intention I bear in mind that intention does not require or equate to premeditation. An intention can occur on the spur of the moment and quite suddenly. It does not matter if it is immediately regretted. In order to find the accused guilty of this charge, I must be satisfied that at the time the accused stabbed J he had the intention to kill her.
There is no doubt that the situation which prevailed in the house that night was extremely volatile. I am satisfied that the accused was very angry with J when she returned home from the poker game and in the course of the contact which followed that he wanted to cause her some serious harm. However, Mr Stokes referred to the fact that the accused had only stabbed J once. He submitted that if the accused had been acting with the intention of killing J, you might have expected there to have been more than one blow.
There is no evidence as to where the knife was before the accused used it to stab J, nor at what point he took it into his hand. I agree with Ms Telfer’s submission that the stabbing must have occurred shortly before the police entered the room, as the accused still had the knife in his hand when they arrived. However I am unable to reach any conclusion as to the accused’s intention based on that fact alone. Although Ms Telfer submitted that the position of the wound supported the inference that the accused intended to kill J, I take into account the evidence of Dr Bautz that relatively little force would have been required for the knife (Exhibit P6) to have penetrated J’s chest and cause the wound that he observed.
All of the children were present in the house at the relevant time. That was not something that could have been overlooked by the accused, no matter how angry he was, and JTM had entered the main bedroom on a number of occasions. In that situation it would be surprising for the accused to have contemplated killing J with the children in such close proximity. Nevertheless, I appreciate that does not negate the possibility that in the heat of the moment, the accused spontaneously and impulsively formed an intention to kill J.
However, at the end of the day, there are a number of imponderables about what actually occurred in the bedroom at the time that J was stabbed, which I am unable to resolve in order to find that the accused had an intention to kill. In the circumstances I find the accused not guilty of the charge of attempted murder.